27 February, 2017
Most schools have substantial land assets under their control, for instance the land, buildings and playgrounds where the school is located, but also fields and sports pitches, and sometimes the occasional area of land that serves no real purpose in the day to day activities of the school. This land can run to many acres, and the land is often situated in areas ripe for development, so represent a potentially valuable asset. The school might not want to see it developed, but equally will want to safeguard the value of the asset or preserve its options as regards future use of the land.
However as well as physical maintenance of the land, the school should also consider whether third parties can acquire rights in respect of these assets. The rights third parties acquire could seriously affect the value of the land, for instance if it could no longer be developed at all or as easily. The title deeds will only tell you so much about the rights that might affect the land. It is possible for third parties to acquire all sorts of rights by land use.
For instance, if a local householder routinely crosses the schools playing fields to get to the local shops, it is possible that after doing so for 20 years they might acquire a legal right of way across the land. Or a local householder might just move their fence and extend their garden a little bit. If they do so for 10 or 12 years (depending on whether the land is registered or not) without objection then they can acquire ownership of that land by 'adverse possession'. It is possible for public rights to be acquired, for instance a public footpath, or the land could be designated as a 'village green' if the public have sued the land for lawful sports and pastimes 'as of right' for not less than 20 years. The acquisition of public rights could give rise to safeguarding issues, if members of the public are allowed to access school land.
A recent example took place in Lancashire recently when Lancashire County Council failed in its objection to the registration as a village green of fields known as Moorside Fields in Lancaster which were adjacent to a village school and used by them as paying fields.
So what can the school do? The first and most important thing is to be vigilant to what is going on. Keep an eye out about what is happening on school premises, make enquiries and above all take action. Make sure that third parties don't acquire rights by default. Bear in mind that activities may be taking place outside school hours or in the holidays.
Second, the use of signs can be effective. Recent case law has looked at what signs can be effective to prevent the acquisition of rights. The case concerned a sign on a car park owned by a members Club which was adjacent to a fish and chip shop. Visitors to the fish and chip shop, such as deliveries or customers, routinely parked in the Club's car park. There was a sign which read 'Private Car Park. For the use of Club Patrons Only. By Order of the Committee'. The issue was whether that sign was sufficient to prevent the chip shop owner acquiring a right to park on the Club land. The Court of Appeal held that the signs were sufficient to prevent rights being acquired.
Before erecting signs a number of practical issues need to be addressed; what does the sign say, where are they positioned, and how often are they inspected and replaced if they have fallen down or been vandalized.
Signs are not always enough, but they can be an inexpensive means of making it clear that the property is private and not to be used by others and, more importantly to head off claims.